A Tyrannical Abuse of Power: Obama Attempts to Appoint Cordray to CFPB

In a revelation that is quite shocking to anyone who knows anything about the 100-plus years of precedent on the recess appointment power or the separation of powers, the White House today announced that the President planned on making a purported recess appointment of Richard Cordray to the new Consumer Financial Protection Bureau. This is a position the Senate has refused to confirm Cordray for, and it is also of note that the White House announced this momentous decision in an official tweet from communications director Dan Pfeiffer.

Heritage’s Diane Katz has explained why that position should remain unfilled until the agency’s powers are modified, but the alleged recess appointment is outrageous no matter what position it would supposedly fill. What is shocking is that the Senate is not in a recess that would allow a recess appointment, and it can’t be under the Constitution, even if many Senators are not in D.C.

The Constitution, in Article I, section 5, plainly states that neither house of Congress can recess for more than three days without the consent of the other house. The House of Representatives did not consent to a Senate recess of more than three days at the end of last year, and so the Senate—consistent with the requirements of the Constitution—is having pro forma sessions every few days. In short, Congress is still in session, and no one in Congress is saying (or can reasonably say) otherwise. It does not matter a wit that most Members of Congress are not in town voting on legislation, because ending a session of Congress requires the passage of a formal resolution, which never occurred.

Under Article II, section 2, clause 2 of the Constitution, the President has the power to fill vacancies that may happen during Senate recesses. That power has been interpreted by scores of attorneys general and their designees in the Department of Justice (DOJ) Office of Legal Counsel (OLC) for over 100 years to require an official, legal Senate recess of at least 10–25 days of duration. (There are a few outlier opinions, never sanctioned by the courts, that suggest a recess of six to seven days might be enough—but never less than that.)

The President’s purported recess appointment of Cordray would render the Senate’s advice and consent role to normal appointments almost meaningless. It is a grave constitutional wrong that Senator Mitch McConnell (R–KY) has already denounced. But it fits a pattern of extra-constitutional abuse by the White House that seems more interested in energizing a liberal base than safeguarding the office of the presidency.

As a former OLC lawyer, I have and will continue to defend President Obama’s issuance of signing statements and other powers that are truly his, but there is no argument that the President can make a recess appointment without doing serious damage to the office Obama holds.

Press reports suggest that “White House lawyers” advised the President that he has such power. What did Attorney General Eric Holder, the most senior lawyer for the President, have to say about that? If he or others at DOJ were asked and provided an affirmative response, that is surprising enough. If Holder was not asked, that is equally telling.

No matter how the decision was reached in the White House, both houses of Congress should respond forcefully to this tyrannical abuse of power, and as soon as possible. A lawsuit would take time and faces various jurisdictional problems that are not necessary to relate here. If a party with standing could be found before the agency head took any adverse action, the courts still might decline to rule on the matter, believing that it is a political question. But that would not mean that there was no wrong or that Congress is without any power to respond.

Congress and the general public should speak out vigorously lest this usurpation lead to yet others.

Todd Gaziano is executive director of Pacific Legal Foundation’s D.C. Center and senior fellow in Constitutional Law. For many years previous, he was the founding director of the Legal Center at The Heritage Foundation.

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"But that would not mean that there was no wrong or that Congress is without any power to respond." Please explain further. What other option to respond does Congress have? Congress it nothing but a doormat to this tyrant. America's citizens are defenseless because the GOP has No Spine. __

Amen Dorothy, They are all weak-kneed and spineless. I think term limits would solve some of this. They worry if they vote this way or that, then they won't return to all the insider trading activities.

Given that he ignored Constitutional precedent, and the law that defines how the CFPB appointees supposed to be appointed*, it would seem to be more than simply surprising.

*The act that created the CFPB requires all appointees be confirmed, implicitly baring recess appointments in any form, so even if congress were in recess, he still couldn't legally make a recess appointment to that position.

Here is a man who has serious problems with the Constitution, calling it "flawed ," has failed to enforce laws that he (not the courts) deems "unconstitutional" in violation of his oath of office which also circumvents the judiciary, has spit in the face of Congress by going around them to avoid allowing them to live up to their Constitutionally mandated responsibilities, violating the letter of the law (the need for recess appointment power comes from an age when there were no telephones or jet planes and needs to be revisited). In essence he is declaring that the powers of the executive, legislative and judiciary branches are his. Now with the Patriot Act, SOPA and NDAA at his disposal I fear the worse. Tyrannical? Abuse of power? Shocking? Sounds like intelligent balanced discourse to me, unless of course "balanced" means to bend Constitutional principles to suit Obama's lust for power.

The White House memo says that "the Senate has effectively been in recess for weeks"- but is not in fact technically in recess. Why do people even bother defending his actions when his own memo justifying his actions clearly says "I know it's not legal, but the ends justify the illegal means"?

Arguing a technicality – which is the crux of law – doesn't win points in the court of public opinion. While I don't think many people care much for this issue, those that do care see a president going around a do-nothing Congress. For better or worse, the president's hand was forced.

You completely missed the real questions, which are (1) what is the definition of recess? (2) how will that definition be reached by another body (e.g. the Court on Congress's recess) and (3) what impact does this have on enforcement actions by the new agency?

Please go back and review those questions, and tone down the "tyannical" "abusive" hyperbole ok?

The House purposely did not forward a formal resolution to end the legislative session nor agree to the Senate recess for the explicit purpose of blocking any potential recess appointments by the President Obama due to the Presidents prior abuse of recess appointments.

It is another example of Mr. Obama's rigid adherence to his ideology which supercedes his respect for the instituion of the Presidency, the Congress and ultimately his belief that legal manuevering and gerrimandering of the Constiutions original intent is necessary due to the his belief the document is unsustainable in the age we currently live in.

Mr. Obama is further voiding himself from the framework the founding fathers provided us in establishing this great nation…. We, the citizens of this great nation deserve better…. Mr. Obama has reduced himself to a silouette of a pompous student government community organizer who believes the means justify the ends…..

He is using an age old crack in the system that EVERY President has used at least once during his administration, but why is it a problem when Obama does it?

Recess appointments are authorized by Article II, Section 2 of the U.S. Constitution, which states: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

It was born of a deeply embedded loathing for people of color and, as you say, to prevent an Obama re-election, as well as to oust him from office. The birth certificate was one issue, then Obama-Care, as they call it, and it’s pretty much been one issue after another, which has nothing at all to do with advancing the country toward anything.

Everytime President Obama is opposed it's not time to pull the race card. "Loathing people of color?" Obama was elected with the black vote (taken as a given) and many white male Evangelical moderates who wanted to make history electing a black man for president. President Obama could not have been elected if the white masses loathed people of color.There was no widespread, grass roots questioning of his pedigree except by some talk show host, bloggers and the like.

He's a Harvard law graduate and fully knows what he is doing. There was no resolution to end the session. It does not matter that previous administations used the same maneuvering, they were criticized as well as they should of been.

what was born of a deeply embedded loathing for people of color? GOVERNMENT!!!? The American people certainly aren't!!!!!!!!!!!! "IT" is government and their controls over people of color that influence ALL minds…

steve h, what part of Article 1 Section 5 don't you get? It clearly states that one house of Congress can't recess without the other agreeing to it. The HoR has not agreed to a Senate recess of longer than three days; thus, this appointment is not a "recess" appointment. The Courts and other legal scholars have determined repeatedly that to be a "recess" appointment, Congress must be recessed 10-25 days. Ummmm, the Senate isn't recessing for more than three days so Obama is VIOLATING the Constitution.

Well, he's already made a mockery of the War Powers Act and decided not to enforce the nation's immigration laws. Why not start pissing on the Constitution too? I'm sure the executive orders to impound corporate jets, and to shut down ATM machines are on the way.

If our congressmen will not act on this and other suspect breaches of our Constitution, then we the people must. This response can include such notions as watering the tree of liberty with the blood of tyrants as Mr. Jefferson put it, although I would prefer the vote.

First in this day and age of communication There should never be a recess!
Second The president is overstepping his authority once again and this should only result in impeachment thereby his decision to make appointments would be null and void.

What about the legality of the "pro forma" sessions? A 3 second session every three days is considered "in session" in Congress? I didn't agree when the Dems did it to prevent W's appointments, and it shouldn't be allowed today. I'm glad that this appalling behavior by Congress may finally be addressed.

What your opinion of the "appalling behavior" of congress is in no way makes it ok to crush the Constitution.
The separation of powers is critical for the well-being of the country. When one guy can do what he wants and make all the rules we are in for it.

The point is, gentle readers, that pursuant to Article 1, Section 5 of the Constitution, the House of Representatives did not consent to adjournment, neither was a joint resolution of adjournment issued. As to the question of pro forma sessions, Article 1 Section 5 also states, "Each House may determine the Rules of its Proceedings." As to how long a meeting or session may be, the Constitution is silent. Therefore, Congress is well within its powers to hold "3 second" sessions if it so wishes.

At the same time, Article 2, Section 3 gives the President the power to adjourn Congress: "he may, on extraordinary Occasions,convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper." With his background in law and the Constitution, the President is fully aware of this power. The fact that he chose not to use it while attempting to appoint Richard Cordray to head the Consumer Financial Protection Bureau shows his utter contempt for Congress generally and for Republicans specifically.

Thank you for bringing this slight against the constitutional powers to our attention. Will congress respond? Or will they let the appointment stand? I suspect yes.
I would question the need for the department at all.

"Pro forma" sessions of Congress are not true sessions of Congress and the Congress's ability to set the rules of its own procedure do not extend to it calling something which is not a bona fide session of Congress, a session.

Thus, the Senate violated the Constitution by going into recess without consent of the House.

I see old Ed "Asleep at the Wheel" Meese weigh in with Gaziano on this. Ed Meese should have NO credibility on anything going on in Washington. This is the same guy who was worried about idiotic and harmless things like flag-burning while the S&L industry was taking care of Big Time Insiders (see Neil Bush) before it crashed, a fiasco that soaked the taxpayers for $88 Billion. And when it came time to go after the scoundrels who caused this mess? Meese reportedly said, "By the time we completed our investigation and had all the facts, we realized we had granted immunity to everyone who could be prosecuted." This guy was our top cop at Justice?

what does anything you have to say have anything to do with the occurring unconstitutional acts of this President and his administration appointing known crooks? How does anyone cause taxpayers $88 billion that isn't the cause of government? taxes do go to the government…did you know that???which makes them both corrupt but you trust government and their added expense, in control. that makes left sense. You're standards of acceptance are way beneath what's necessary to build this country's strength.

Why are we surprised, his stripes have not changed. He refuses to be an American and has not ever followed the Constitution, why would he now back door appointments, back door Obamacare this list goes on and on. What we must do now is throw him out of the White House. Start working toward this, is what's important, complaining dosen't seem to work so get the Socialist out unless you want to be Russia,Iran etc.

Speaking as someone who thinks the Obama presidency is a disaster for this country, I think on this point, the President has an arguable case. The fact is, Congress may have been in session de jure, but it was not in session de facto. The Republican House was not doing anything or conducting any business, except for holding 30-second long pro-forma micro sessions every three days precisely to avoid officially going into recess. They were doing this as a legal fiction precisely so that Obama would not be able to make any recess appointments while Congress was not actually meeting. If the Democrats did that under a Republican presidency the Republicans would be screaming bloody hell–and they would have a good case for saying Congress was not actually in session, but in recess.

Interestingly, if this matter were taken adjudicated the courts might find this a "political question" and therefore refuse jurisdiction.

If the actions of the Obama Administration have been illegal/unconstitutional, why have congressmen/senators only paid lip service to the deeds?? Where are the arrests? Why haven't calls for impeachment been leveled? I am tired of everyone stating the obvious and not doing anything about it! This administration and its DOJ has acted outside of the law, thereby making the Rule of Law null and void. I don't see how anyone should be punished for any law they might break if our highest offices in our country are routinely breaking the law. If I, a citizen of the United States were to try to arrest Obama or Holder I'd be handcuffed and hauled away before I could even get close to those men. Again I ask, why isn't anything being done about the intentional dismantling of our Constitution?

George W. Bush made 171 recess appointments, of which 99 were to full-time positions. As of January 5, 2012, Barack Obama has made 32 recess appointments, all to full-time positions. And Clinton had 139. This is not a new concept and it has clearly been the norm for Presidents from both parties for the last 20 years. It is ridiculous that anyone could call this "a tyrannical abuse of power". Come back from fantasy-land.http://www.senate.gov/CRSReports/crs-publish.cfm?…

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